One of the most common questions after separation is: “Do we just split everything 50/50?” The short answer is no. Australian family law does not begin from an assumed equal division. Instead, the court works through a structured, principled process to reach an outcome that is just and equitable in the particular circumstances of the parties.
This guide explains how property settlement works after separation for both married and de facto couples, what the court takes into account, and the time limits that apply. For advice on a specific situation, see our Family Law practice-area page.
The legal framework
Property matters between separated married couples are dealt with under Part VIII of the Family Law Act 1975 (Cth), principally section 79. Corresponding provisions apply to eligible de facto couples under Part VIIIAB, principally section 90SM. The Federal Circuit and Family Court of Australia (FCFCOA) has jurisdiction across the country, including for parties who lived together in Victoria.
“Eligible” matters for de facto couples. A court may only make a section 90SM order if satisfied of at least one of the matters in section 90SB — the relationship lasted at least two years in total, or there is a child of the relationship, or the applicant made substantial contributions and a failure to make an order would cause serious injustice, or the relationship was registered under a prescribed State or Territory law. There is also a geographical requirement in section 90SK, based on ordinary residence in a participating jurisdiction. Not every de facto relationship gives access to the Act’s property regime, so eligibility should be checked at the outset.
The framework was substantially rewritten by the Family Law Amendment Act 2024 (Cth), which commenced on 10 June 2025. The matters a court takes into account are now set out expressly in the Act rather than left to case law alone. Under section 79 the court must:
- identify the existing legal and equitable rights and interests in the property of the parties, and their existing liabilities — section 79(3)(a); and
- take into account the contribution considerations in section 79(4) and the current and future circumstances considerations in section 79(5) — section 79(3)(b).
The court must not make an order unless satisfied that, in all the circumstances, it is just and equitable to do so — section 79(2). There is no automatic 50/50 rule: the framework is discretionary and the outcome depends on the facts.
Identifying property and liabilities
The first task under section 79(3)(a) is to identify the property, and the liabilities, of the parties. In practice the “asset pool” typically includes:
- the family home and any other real estate;
- bank accounts and investments;
- vehicles;
- household contents and personal effects;
- businesses and business interests;
- trusts (in some circumstances);
- superannuation entitlements (see below);
- debts and liabilities, including mortgages, credit cards and tax.
The Act does not fix a valuation date. As a matter of established practice, assets are usually valued as at the date of the hearing or settlement rather than the date of separation, which is one reason property division can move with market fluctuations.
Since 10 June 2025 the Act deals separately with a companion animal: the court may make an order about ownership of a pet, but only having regard to the specific matters listed in section 79(7), and it cannot order joint ownership — sections 79(6) and 79(7).
Contributions — section 79(4)
The court takes into account the contributions each party has made, so far as they are relevant:
- Financial contributions — property brought into the relationship, wages, business income, inheritances, gifts, redundancy payments and compensation awards — section 79(4)(a);
- Non-financial contributions — for example, renovating a jointly owned home — section 79(4)(b);
- Contributions as homemaker and parent — contributions to the welfare of the family, including in the capacity of homemaker or parent — section 79(4)(c);
- The effect of family violence on a party’s ability to make those contributions — section 79(4)(ca), inserted with effect from 10 June 2025;
- the effect of any proposed order on earning capacity, other orders under the Act, and child support already provided — sections 79(4)(d), (f) and (g).
Longer relationships often result in contributions being treated as broadly equal, but each case is fact-specific.
Current and future circumstances — section 79(5)
The court then takes into account the parties’ current and future circumstances. The considerations listed in section 79(5) include:
- the effect of any family violence on the current and future circumstances of the other party — section 79(5)(a);
- the age and state of health of each party — section 79(5)(b);
- income, property, financial resources and capacity for appropriate gainful employment — section 79(5)(c);
- the effect of any material wastage of property or financial resources caused intentionally or recklessly by a party — section 79(5)(d);
- liabilities incurred by either or both parties, including their nature and the circumstances relating to them — section 79(5)(e);
- the care of a child of the marriage under 18, including the need to provide appropriate housing for that child — section 79(5)(f);
- commitments, responsibilities to support others, pension eligibility, a reasonable standard of living, and the effect of any proposed order — sections 79(5)(g) to (m).
A party who is the primary carer of young children, or whose earning capacity has been reduced by their role in the relationship, may receive an adjustment in their favour.
The just and equitable requirement
The court must not make an order altering property interests unless satisfied that, in all the circumstances, it is just and equitable to do so — section 79(2). This is a statutory precondition rather than an arithmetical final step, and it guards against outcomes that might follow from the individual considerations but are not just and equitable overall.
Superannuation
Superannuation is dealt with as property that can be split, but it does not become cash on separation. A splitting order or superannuation agreement can transfer or credit an amount from one party’s superannuation interest for the other party, where it remains subject to preservation requirements — section 90XZ of the Family Law Act 1975 (Cth). Splitting is only available in accordance with Part VIIIB, which applies to married and de facto couples alike — sections 90XA and 90XS(2). For a de facto couple in Victoria the property order is made under section 90SM in Part VIIIAB, with the superannuation orders made under Part VIIIB. Part VIIIC is confined to Western Australian de facto relationships and does not apply here.
Value is determined under the Family Law (Superannuation) Regulations 2025 (Cth) where those Regulations provide a method, and otherwise by such method as the court considers appropriate — section 90XT(2). Our guide to superannuation in property settlements explains the process in detail.
Defined-benefit funds and self-managed superannuation funds involve additional complexity and often require expert evidence. See our guides to defined-benefit superannuation in family law and ESSSuper and family law property settlements.
Disclosure
Since 10 June 2025 the duty of full and frank financial disclosure is set out expressly in the Act — section 71B for married couples and section 90RI for de facto couples. The duty is owed both to the court and to each other party, must be performed in a timely manner, and applies from the start of a proceeding until it is finalised. It also applies to separated parties who are preparing for a proceeding, before anything is filed — section 71B(5).
Disclosure includes bank statements, tax returns, superannuation statements, business accounts and any relevant trust or company records. The Act notes a range of consequences for failing to comply, including that the failure may be taken into account in making a section 79 order, costs orders, sanctions for contravention, contempt, and staying or dismissing all or part of the proceeding.
Reaching agreement without court
Most matters resolve without a contested trial. The main tools are:
- Negotiation between the parties and their lawyers;
- Family dispute resolution (mediation);
- Consent orders — an agreement approved by the FCFCOA and made into binding court orders;
- Binding financial agreements under Part VIIIA (or Part VIIIAB for de facto couples) — private agreements that meet strict statutory requirements.
Consent orders and binding financial agreements have different advantages and risks. In particular, only consent orders provide the certainty of a court-approved outcome.
Court proceedings
If agreement is not possible, either party may apply to the FCFCOA. Proceedings involve interim procedural hearings, disclosure, valuations, mediation, and, if unresolved, a contested final hearing. Court is slower and more expensive than negotiated settlement, and outcomes are less predictable.
Time limits
Strict time limits apply under section 44 of the Family Law Act 1975 (Cth):
- Married couples — property settlement and spousal maintenance proceedings must generally be instituted within 12 months of a divorce order taking effect — section 44(3);
- De facto couples — proceedings must generally be instituted within 2 years of the end of the de facto relationship — section 44(5).
Later applications require leave of the court, which is not guaranteed. Do not assume you have unlimited time to sort things out.
When to obtain advice
Advice is often useful — and sometimes essential — where:
- either party owns real estate, a business, superannuation, or a trust interest;
- there was significant property brought in or inherited;
- there is a large disparity in income or earning capacity;
- family violence, coercion or financial abuse is a concern;
- you are considering signing a binding financial agreement.
Holt & Macdonald advises separating couples across Ringwood and Melbourne’s eastern suburbs on property settlement, superannuation splitting and related matters. See our Family Law page for how we work.
